USERRAUSERRAUniformed Services Employment Uniformed Services Employment

& Reemployment Rights Act& Reemployment Rights Act

Reserve Officers AssociationReserve Officers AssociationOne Constitution Ave.One Constitution Ave.

Washington, D.C.Washington, D.C.

HISTORYHISTORY

Congress enacted reemployment statute Congress enacted reemployment statute in 1940, as part of Selective Training and in 1940, as part of Selective Training and Service Act. Referred to colloquially as Service Act. Referred to colloquially as the Veterans’ Reemployment Rights Act the Veterans’ Reemployment Rights Act (VRRA).(VRRA).

LIBERAL CONSTRUCTIONLIBERAL CONSTRUCTION

Reemployment statute should be Reemployment statute should be “liberally construed for he who has laid “liberally construed for he who has laid aside his private concerns to serve his aside his private concerns to serve his country in its hour of great need.” country in its hour of great need.” Fishgold v. Sullivan Drydock & Repair Fishgold v. Sullivan Drydock & Repair Corp., Corp., 328 U.S. 275, 285 (1946).328 U.S. 275, 285 (1946).

NOW MORE THAN EVERNOW MORE THAN EVER

Reemployment statute is important and Reemployment statute is important and relevant, now more than ever. Almost relevant, now more than ever. Almost 700,000 National Guard & Reserve 700,000 National Guard & Reserve members called to active duty since members called to active duty since terrorist attacks of 9/11/2001. Some terrorist attacks of 9/11/2001. Some have been called multiple times.have been called multiple times.

NOW MORE THAN EVER—CONT.NOW MORE THAN EVER—CONT.

Reemployment statute enacted for Reemployment statute enacted for “greatest generation” who won WWII. “greatest generation” who won WWII. Applies equally to their children, grand-Applies equally to their children, grand-children, and great-grandchildren winning children, and great-grandchildren winning the Global War on Terrorism today.the Global War on Terrorism today.

USERRA HISTORYUSERRA HISTORY

Enacted 1994 to replace VRRA, originally Enacted 1994 to replace VRRA, originally enacted in 1940.enacted in 1940.

Public Law 103-353, signed 10/13/1994.Public Law 103-353, signed 10/13/1994. Title 38, United States Code, sections Title 38, United States Code, sections

4301-4335.4301-4335. 38 U.S.C. 4301-4335.38 U.S.C. 4301-4335. Amended 1996, 1998, 2000, 2004, 2008.Amended 1996, 1998, 2000, 2004, 2008.

USERRA LEGISLATIVE HISTORYUSERRA LEGISLATIVE HISTORY

House Report No. 103-65—substantial House Report No. 103-65—substantial excerpt available at 1994 excerpt available at 1994 United States United States Code Congressional & Administrative Code Congressional & Administrative News News pages 2449 through 2515pages 2449 through 2515

ROA LAW REVIEWROA LAW REVIEW

Initiated 1997 in Initiated 1997 in The Officer.The Officer. On Reserve Officers Association (ROA) On Reserve Officers Association (ROA)

website since 2000.website since 2000. www.roa.org/law_review More than 500 articles, mostly about More than 500 articles, mostly about

USERRAUSERRA Six new articles added each month.Six new articles added each month.

LAW REVIEW—CONT.LAW REVIEW—CONT.

Detailed Subject IndexDetailed Subject Index USERRA numbers start with oneUSERRA numbers start with one This PowerPoint refers to ROA Law Review This PowerPoint refers to ROA Law Review

Subject Index categoriesSubject Index categories

USERRA APPLIES TO USERRA APPLIES TO EMPLOYERSEMPLOYERS

Federal Government—1.1.1.8Federal Government—1.1.1.8 State and local governments—1.1.1.7State and local governments—1.1.1.7 Small and large private employers—Small and large private employers—

1.1.1.21.1.1.2 You only need one employee to be You only need one employee to be

covered—covered—Cole v. Swint, Cole v. Swint, 961 F.2d 58 (5961 F.2d 58 (5thth Cir. 1992).Cir. 1992).

HIGHER EXPECTATION FOR HIGHER EXPECTATION FOR FEDERAL GOVERNMENTFEDERAL GOVERNMENT

““It is the sense of Congress that the It is the sense of Congress that the Federal Government should be a model Federal Government should be a model employer in carrying out the provisions of employer in carrying out the provisions of this chapter.” 38 U.S.C. 4301(b)this chapter.” 38 U.S.C. 4301(b)

Federal employee is exempted from the Federal employee is exempted from the descending escalator while on duty—5 descending escalator while on duty—5 CFR 353.209(a). See Law Review 0740.CFR 353.209(a). See Law Review 0740.

USERRA EMPLOYERS-Cont.USERRA EMPLOYERS-Cont.

Applies to U.S. employers overseas—Applies to U.S. employers overseas—1.1.1.51.1.1.5

Applies to foreign employers in the U.S.—Applies to foreign employers in the U.S.—1.1.1.61.1.1.6

Applies to joint employers and hiring hallsApplies to joint employers and hiring halls—1.1.1.1—1.1.1.1

Applies to successors in interest—1.1.1.9Applies to successors in interest—1.1.1.9

USERRA--NOT APPLYUSERRA--NOT APPLY

USERRA applies to all U.S. employers USERRA applies to all U.S. employers EXCEPTEXCEPT

Religious institutions—1.1.1.3Religious institutions—1.1.1.3 Indian tribes—1.1.1.4Indian tribes—1.1.1.4 Foreign embassiesForeign embassies International Organizations—United International Organizations—United

Nations, World Bank, etc.Nations, World Bank, etc.

USERRA—KINDS OF JOBSUSERRA—KINDS OF JOBS

Applies to temporary, probationary, and Applies to temporary, probationary, and at-will jobs—1.1.2.1at-will jobs—1.1.2.1

Applies to executive employees—1.1.2.5Applies to executive employees—1.1.2.5 Does not apply to partners, independent Does not apply to partners, independent

contractors, contractors, but label is not controlling—but label is not controlling—1.1.2.21.1.2.2

Applies to laid-off employees—1.1.2.3Applies to laid-off employees—1.1.2.3

USERRA--STUDENTSUSERRA--STUDENTS

USERRA does not apply to the relationship USERRA does not apply to the relationship between a student and an educational between a student and an educational institution, but 11 states have such laws—institution, but 11 states have such laws—1.1.2.41.1.2.4

USERRA—KINDS OF SERVICEUSERRA—KINDS OF SERVICE

Applies to REGULAR military service, as Applies to REGULAR military service, as well as National Guard & Reserve—1.1.3.2well as National Guard & Reserve—1.1.3.2

Applies to Applies to voluntary as well as involuntary voluntary as well as involuntary service—service—1.1.3.11.1.3.1

Applies to exam to determine fitness—Applies to exam to determine fitness—1.1.3.71.1.3.7

Applies to funeral honors duty—1.1.3.8Applies to funeral honors duty—1.1.3.8

USERRA—KINDS OF SERVICE—USERRA—KINDS OF SERVICE—CONT.CONT.

Applies to Public Health Service (PHS) Applies to Public Health Service (PHS) service—1.1.3.4service—1.1.3.4

Does NOT apply to National Oceanic & Does NOT apply to National Oceanic & Atmospheric Administration service—Atmospheric Administration service—1.1.3.51.1.3.5

Applies to National Disaster Medical Applies to National Disaster Medical System (NDMS) service—1.1.3.6System (NDMS) service—1.1.3.6

USERRA—KINDS OF SERVICE—USERRA—KINDS OF SERVICE—CONT.CONT.

Does NOT apply to service in a foreign Does NOT apply to service in a foreign military service—1.1.3.10military service—1.1.3.10

Does NOT apply to service by military Does NOT apply to service by military family members, but Family Medical Leave family members, but Family Medical Leave Act (FMLA) applies—1.1.3.9Act (FMLA) applies—1.1.3.9

USERRA FORBIDS USERRA FORBIDS DISCRIMINATIONDISCRIMINATION

Forbids discrimination in hiring, retention, Forbids discrimination in hiring, retention, promotion, benefit—38 U.S.C. 4311promotion, benefit—38 U.S.C. 4311

Because of membership in service, Because of membership in service, application to join, performance of service, application to join, performance of service, application or obligation to perform serviceapplication or obligation to perform service—38 U.S.C. 4311(a)—38 U.S.C. 4311(a)

Because of exercise of right, action to Because of exercise of right, action to enforce, etc.—38 U.S.C. 4311(b)enforce, etc.—38 U.S.C. 4311(b)

USERRA FORBIDS USERRA FORBIDS DISCRIMINATION—CONT.DISCRIMINATION—CONT.

Only need to prove protected status or Only need to prove protected status or activity was A MOTIVATING FACTOR—NOT activity was A MOTIVATING FACTOR—NOT necessarily only reason—38 U.S.C. 4311(c)necessarily only reason—38 U.S.C. 4311(c)

BURDEN OF PROOF shifts to employerBURDEN OF PROOF shifts to employer 1.2 in Subject Index1.2 in Subject Index

PROMOTIONS FOR MOBILIZED PROMOTIONS FOR MOBILIZED EMPLOYEEEMPLOYEE

““[Federal] Agency promotion plans must [Federal] Agency promotion plans must provide a mechanism by which employees provide a mechanism by which employees who are absent because of … uniformed who are absent because of … uniformed service can be considered for promotion.” service can be considered for promotion.” 5 C.F.R. 353.106(c).5 C.F.R. 353.106(c).

See Law Review 0855.See Law Review 0855.

USERRA REINSTATEMENTUSERRA REINSTATEMENT

Only necessary to prove 5 eligibility criteriaOnly necessary to prove 5 eligibility criteria—don’t need to prove discrimination—don’t need to prove discrimination

38 U.S.C. 4312—distinguish from section 38 U.S.C. 4312—distinguish from section 43114311

1.3 in Subject Index1.3 in Subject Index

REINSTATEMENT CRITERIAREINSTATEMENT CRITERIA

Left for service and gave prior notice—Left for service and gave prior notice—1.3.1.11.3.1.1

Five-year limit (many exceptions)—1.3.1.2Five-year limit (many exceptions)—1.3.1.2 Released without punitive or other-than-Released without punitive or other-than-

honorable discharge—1.3.1.2honorable discharge—1.3.1.2 Timely application for reemployment—Timely application for reemployment—

1.3.1.31.3.1.3

AFFIRMATIVE DEFENSESAFFIRMATIVE DEFENSES

Not required to reemploy if employer’s Not required to reemploy if employer’s changed circumstances make doing so changed circumstances make doing so impossible or unreasonable. 38 U.S.C. impossible or unreasonable. 38 U.S.C. 4312(d)(1)(A).4312(d)(1)(A).

Not required to train or accommodate Not required to train or accommodate disability if doing so imposes undue disability if doing so imposes undue hardship on employer. 38 U.S.C. 4312(d)hardship on employer. 38 U.S.C. 4312(d)(1)(B).(1)(B).

AFFIRMATIVE DEFENSES—AFFIRMATIVE DEFENSES—CONT.CONT.

Not required to reemploy if pre-service Not required to reemploy if pre-service employment relationship was brief, non-employment relationship was brief, non-recurrent, and no reasonable expectation recurrent, and no reasonable expectation of continuation indefinitely or for a of continuation indefinitely or for a significant period. 38 U.S.C. 4312(d)(1)(C)significant period. 38 U.S.C. 4312(d)(1)(C)

AFFIRMATIVE DEFENSES—AFFIRMATIVE DEFENSES—CONT.CONT.

Employer has burden to raise and establish Employer has burden to raise and establish the affirmative defense. 38 U.S.C. 4312(d)the affirmative defense. 38 U.S.C. 4312(d)(2)(2)

Subject Index 1.3.1.4Subject Index 1.3.1.4

REINSTATEMENT REINSTATEMENT ENTITLEMENTSENTITLEMENTS

Prompt reinstatement—1.3.2.1Prompt reinstatement—1.3.2.1 Continuous seniority—1.3.2.2Continuous seniority—1.3.2.2 Continuous pension credit—1.3.2.3Continuous pension credit—1.3.2.3 Status—1.3.2.4—Includes location, Status—1.3.2.4—Includes location,

supervisor vice supervisee, hours, supervisor vice supervisee, hours, promotion opportunity, etc. promotion opportunity, etc.

ESCALATOR PRINCIPLEESCALATOR PRINCIPLE

““The returning veteran does not step The returning veteran does not step back on the seniority escalator at the back on the seniority escalator at the point he stepped off. He steps back on at point he stepped off. He steps back on at the precise point he would have occupied the precise point he would have occupied had he kept his position continuously had he kept his position continuously during the war.” during the war.” Fishgold v. Sullivan Fishgold v. Sullivan Drydock & Repair Corp., Drydock & Repair Corp., 328 U.S. 275, 328 U.S. 275, 284-85 (1946).284-85 (1946).

ESCALATOR PRINCIPLE—CONT.ESCALATOR PRINCIPLE—CONT.

Escalator principle codified at 38 U.S.C. Escalator principle codified at 38 U.S.C. 4316(a).4316(a).

Applies to Applies to perquisites of seniority.perquisites of seniority. Escalator can descend as well as ascend.Escalator can descend as well as ascend. Federal employee exempted from Federal employee exempted from

descending escalator—5 CFR 353.209(a)descending escalator—5 CFR 353.209(a) Subject Index 1.3.2.2Subject Index 1.3.2.2

ENTITLEMENTS—CONT.ENTITLEMENTS—CONT.

Rate of pay upon reinstatement—1.3.2.5Rate of pay upon reinstatement—1.3.2.5 Health insurance reinstatement and Health insurance reinstatement and

continuation—1.3.2.6continuation—1.3.2.6 Adequate rest, travel, and prep time Adequate rest, travel, and prep time

before and after service--1.3.2.7before and after service--1.3.2.7 Training after returning to work—1.3.2.8Training after returning to work—1.3.2.8

DISABLED VETERANSDISABLED VETERANS

Applies to disabled veteran otherwise Applies to disabled veteran otherwise entitled to reemploymententitled to reemployment

In addition to and broader than Americans In addition to and broader than Americans with Disabilities Act (ADA)with Disabilities Act (ADA)

Employer must make reasonable effortsEmployer must make reasonable efforts Right to ANOTHER job if disability cannot Right to ANOTHER job if disability cannot

be accommodated—1.3.2.9be accommodated—1.3.2.9

FURLOUGH/LEAVE OF ABSENCEFURLOUGH/LEAVE OF ABSENCE

Employee away from work for service Employee away from work for service deemed to be on leave. 38 U.S.C. 4316(b)deemed to be on leave. 38 U.S.C. 4316(b)

Entitled to non-seniority benefits like Entitled to non-seniority benefits like others on leave of other kinds.others on leave of other kinds.

Escalator principle distinguished.Escalator principle distinguished. Subject Index 1.3.2.10Subject Index 1.3.2.10

VACATIONS, HOLIDAYS, DAYS VACATIONS, HOLIDAYS, DAYS OFFOFF

1.3.2.111.3.2.11 Don’t generally accrue vacation from Don’t generally accrue vacation from

civilian employer while away from work civilian employer while away from work for servicefor service

Right to use vacation while away from Right to use vacation while away from work for service—38 U.S.C. 4316(d)work for service—38 U.S.C. 4316(d)

NO DISCHARGE EXCEPT FOR NO DISCHARGE EXCEPT FOR CAUSECAUSE

For one year, if period of service greater For one year, if period of service greater than 180 days—38 U.S.C. 4316(c)(1)than 180 days—38 U.S.C. 4316(c)(1)

For 180 days, if period of service 31-180 For 180 days, if period of service 31-180 days—38 U.S.C. 4316(c)(2)days—38 U.S.C. 4316(c)(2)

38 U.S.C. 4311 distinguished38 U.S.C. 4311 distinguished Subject Index 1.3.2.12Subject Index 1.3.2.12

USERRA ENFORCEMENTUSERRA ENFORCEMENT

Cases against state, local, and private Cases against state, local, and private employers—forum is Federal District Courtemployers—forum is Federal District Court—38 U.S.C. 4323—1.4—38 U.S.C. 4323—1.4

1111thth Amendment problem when suing a Amendment problem when suing a STATE (does not include local)—1.1.1.7STATE (does not include local)—1.1.1.7

No exhaustion of remedies requirementNo exhaustion of remedies requirement Subject Index 1.4Subject Index 1.4

ENFORCEMENT—CONT.ENFORCEMENT—CONT.

Cases against Federal Agencies—forum is Cases against Federal Agencies—forum is the Merit Systems Protection Board the Merit Systems Protection Board (MSPB). 38 U.S.C. 4324(MSPB). 38 U.S.C. 4324

Appeals to United States Court of Appeals Appeals to United States Court of Appeals for Federal Circuitfor Federal Circuit

Fed Cir not shy about reversing MSPBFed Cir not shy about reversing MSPB Subject Index 1.1.1.8 and 1.4—Law Subject Index 1.1.1.8 and 1.4—Law

Review 0755 especially.Review 0755 especially.

USERRA ASSISTANCEUSERRA ASSISTANCE

National Committee for Employer Support National Committee for Employer Support of the Guard & Reserve (ESGR)of the Guard & Reserve (ESGR)

DoD organization established 1972DoD organization established 1972 Informal, nonconfrontational, and quickInformal, nonconfrontational, and quick www.esgr.mil 1-800-336-45901-800-336-4590

USERRA ASSISTANCE—CONT.USERRA ASSISTANCE—CONT.

U.S. Dept. of Labor, Veterans’ Employment U.S. Dept. of Labor, Veterans’ Employment & Training Service (DOL-VETS)& Training Service (DOL-VETS)

Claimant NOT required to exhaust Claimant NOT required to exhaust remedies through DOL-VETS before suing, remedies through DOL-VETS before suing, BUT you must go through DOL-VETS if you BUT you must go through DOL-VETS if you want free legal helpwant free legal help

DOL-VETS—CONT.DOL-VETS—CONT.

Required to assist 38 U.S.C. 4321Required to assist 38 U.S.C. 4321 Required to investigate claimed violationsRequired to investigate claimed violations

—38 U.S.C. 4322—38 U.S.C. 4322 Has subpoena authority—38 U.S.C. 4326Has subpoena authority—38 U.S.C. 4326 Referral to Special Counsel (federal Referral to Special Counsel (federal

agency) or Attorney General (state, local, agency) or Attorney General (state, local, or private)—38 U.S.C. 4322(e)or private)—38 U.S.C. 4322(e)

Time limits enacted Oct. 2008Time limits enacted Oct. 2008

OPM ROLE IN USERRAOPM ROLE IN USERRA

Office of Personnel Management Office of Personnel Management responsible for finding another job within responsible for finding another job within Executive Branch, if impossible or Executive Branch, if impossible or unreasonable in old agency. Also applies unreasonable in old agency. Also applies to Legislative Branch, Judicial Branch, to Legislative Branch, Judicial Branch, Intelligence Agencies, National Guard Intelligence Agencies, National Guard technicians. 38 U.S.C. 4314, 4315technicians. 38 U.S.C. 4314, 4315

Law Review 0763.Law Review 0763.

USERRA STATUTE OF USERRA STATUTE OF LIMITATIONSLIMITATIONS

No Federal or State statute of limitations No Federal or State statute of limitations applies—38 U.S.C. 4323(i), 4327 (enacted applies—38 U.S.C. 4323(i), 4327 (enacted Oct. 2008)Oct. 2008)

Equitable doctrine of laches appliesEquitable doctrine of laches applies I don’t recommend you sleep on rightsI don’t recommend you sleep on rights Subject Index 1.6Subject Index 1.6

USERRA AND OTHER USERRA AND OTHER LAWS/POLICIESLAWS/POLICIES

Does not supersede state law, employer Does not supersede state law, employer policy, contract, collective bargaining policy, contract, collective bargaining agreement (CBA), etc. if greater or agreement (CBA), etc. if greater or additional rights—38 U.S.C. 4302(a)additional rights—38 U.S.C. 4302(a)

Supersedes state laws, employer policies, Supersedes state laws, employer policies, practices, contracts, CBAs, etc. that limit practices, contracts, CBAs, etc. that limit USERRA rights or impose additional USERRA rights or impose additional prerequisites—38 U.S.C. 4302(b)—1.8prerequisites—38 U.S.C. 4302(b)—1.8

USERRA AND OTHER MATTERSUSERRA AND OTHER MATTERS—CONT.—CONT.

““No practice of employers or agreements No practice of employers or agreements between employers and unions can cut between employers and unions can cut down the service adjustment benefits that down the service adjustment benefits that Congress has secured the veteran.” Congress has secured the veteran.” Fishgold v. Sullivan Drydock & Repair Fishgold v. Sullivan Drydock & Repair Corp., Corp., 328 U.S. 275, 285 (1946)328 U.S. 275, 285 (1946)

USERRA ARBITRATIONUSERRA ARBITRATION

I believe that 38 U.S.C. 4302(b) overrides I believe that 38 U.S.C. 4302(b) overrides agreements to submit future USERRA agreements to submit future USERRA disputes to binding arbitration—disputes to binding arbitration—unfortunately the 5unfortunately the 5thth Cir. and 6 Cir. and 6thth Cir. Cir. disagreedisagree

Need corrective legislationNeed corrective legislation Subject Index 1.5Subject Index 1.5

USERRA REGULATIONSUSERRA REGULATIONS

Director of Office of Personnel Director of Office of Personnel Management (OPM) has authority to Management (OPM) has authority to promulgate regulations regarding promulgate regulations regarding application of USERRA to Federal application of USERRA to Federal agencies—38 U.S.C. 4331(b)agencies—38 U.S.C. 4331(b)

OPM USERRA Regulations in Title 5, Code OPM USERRA Regulations in Title 5, Code of Federal Regulations (CFR), Part 353of Federal Regulations (CFR), Part 353

USERRA REGULATIONS—CONT.USERRA REGULATIONS—CONT.

Secretary of Labor has authority to Secretary of Labor has authority to promulgate regulations about application promulgate regulations about application of USERRA to state and local governments of USERRA to state and local governments and private employers—38 U.S.C. 4331(a)and private employers—38 U.S.C. 4331(a)

DOL USERRA Regulations in 20 CFR Part DOL USERRA Regulations in 20 CFR Part 10021002

USERRA REGULATIONS—CONT.USERRA REGULATIONS—CONT.

DOL USERRA Regulations preamble—DOL USERRA Regulations preamble—2005 2005 Federal Register Federal Register pages 75246 pages 75246 through 75313 (Dec. 19, 2005). Also through 75313 (Dec. 19, 2005). Also available at available at www.dol.gov/vets. .

Subject Index 1.7Subject Index 1.7